Welker v. MFA Central Co-op.

• Decision Date: 15 June 1964
• Docket Number: CO-OPERATIV,No. 31477,E,31477
• Citation: 380 S.W.2d 481
• Parties: Lawrence WELKER, Employee, (Plaintiff) Respondent, v. MFA CENTRALmployer and MFA Mutual Insurance Company, Insurer, (Defendants) Appellants.
• Court: Missouri Court of Appeals

Page 481

380 S.W.2d 481

Lawrence WELKER, Employee, (Plaintiff) Respondent, v. MFA CENTRAL CO-OPERATIVE, Employer and MFA Mutual Insurance Company, Insurer, (Defendants) Appellants.

No. 31477.

St. Louis Court of Appeals, Missouri.

June 15, 1964.

Roberts & Roberts, Farmington, J. Richard Roberts, Hillsboro, for appellants.

Spradling, Bradshaw & McHaney, John P. Bradshaw, Cape Girardeau, for respondent.

ANDERSON, Judge.

This is a workmen's compensation proceeding filed by Lawrence Welker against his employer, MFA Central Co-Operative of Perryville, Missouri, and its insurance carrier, MFA Mutual Insurance Company. The Referee found that said employee sustained an accident, but that the disability for which claim was made was not caused by said accident. On review the Industrial Commission, one member dissenting, reversed the Referee. The total amount of the award was $3,771.97. On appeal the Circuit Court sustained the Commission's award. The employer and insurer appealed to this court.

It is alleged in the claim that the date of the accident was October 3, 1959; that the place where it occurred was Kasten's farm near Uniontown, Missouri; that claimant suffered injury to his back and body as a whole; and that the exact nature of the injury was a ruptured intervertebral disc. It was also alleged that, 'I was unloading 120 lb. sacks of seed wheat, and I was lifting them back over a row of fertilizer sacks on the truck and my foot slipped back as I picked one up, and I landed on my stomach kind of draped over the row of fertilizer sacks with my head toward the front of the truck and my feet toward the tail. Pain hit me when I fell on the fertilizer sacks and got so bad by the end of the day that I went to the doctor the following Monday.'

The answer of the employer and insurer was a general denial.

The sole point raised on this appeal is that the court erred in affirming the award of the Industrial Commission because there was no sufficient, competent evidence to support the award, for the reason that there was a failure to prove a causal connection between the accident and claimant's injury.

Claimant was employed by MFA Central Co-Operative during the year 1959 as a truck driver. His duties were to deliver feed and other supplies. A part of his duties was to load and unload the truck he was assigned to drive.

On October 3, 1959, claimant made a delivery of feed to the Kasten farm, which is located about a mile and a half west of Uniontown. When he arrived at the Kasten farm he backed the truck to the granary to unload the order. In attempting to do so, it was necessary for him to reach over a row of fertilizer sacks in the back end of the truck in order to get the sack of feed. Claimant picked up the sack of feed with both hands, and as he started to lift it, became overbalanced and slipped. He immediately felt pain in his back. Mr. Kasten then assisted claimant in unloading the feed. Thereafter he drove to the farm of Mr. Lueders to deliver the sacks of fertilizer. These were unloaded by Mr. Lueders. Claimant then returned to Perryville, put the truck in a shed and went home. He stated that he 'laid around' the next day, which was Sunday. On Monday, October 5, 1959, he told Mr. Kephardt, the manager under whom he worked, about the incident, and then consulted Dr. Stanley G. Legner, a physician at Perryville. Claimant testified that he told Dr. Legner he had strained or hurt his back in some way; that Dr. Legner examined him, gave him some pills, and told him to go home and 'take it easy.' Claimant was off work for about a week and a half. When he returned to work he had a helper to assist him to load and unload his truck.

On November 5, 1959, claimant drove his truck to the farm of Leroy Wills to make a delivery. He took hold of a sack of feed which was in the front end of the truck and pulled it to the rear. He then turned around to set it upright, at which time he experienced a severe pain in his back. On this occasion there was no slip or unusual movement of claimant's body, except to bring his left hand around to help raise the sack. Mr. Wills and Mr. Schisler removed claimant from the truck and drove him to the MFA office in Perryville. They carried him from the truck to the office, and then to Dr. Legner's office. Dr. Legner gave him a 'shot' to relieve his pain, then sent him to the Perry County Memorial Hospital, where he remained under the care of Dr. Legner for one week. Thereafter he was taken to the St. Francis Hospital in Cape Girardeau, where he was under the care of Dr. Thomas G. Otto, an orthopedic surgeon. Claimant remained in St. Francis Hospital twenty-two days. He was thereafter treated by Dr. Otto in his office until about the middle of April. On May 1, 1960, claimant went to work for a Mr. Fassold, where he was employed at the date of the hearing before the Referee.

Claimant testified that as far as he knew, his back was in good shape prior to October 3, 1959, but since that date he was unable to do the type of work he had been doing. He stated that on some days he would get along good, but on others, perhaps a day or two a week, his back would bother him to such an extent he could not sit still in the driver's seat. The pain is in the lower part of his back. At the hearing he indicated a spot from one to three inches below the belt in the midsection of his back as the area where the pain strikes. After leaving the hospital claimant wore a corset, which Dr. Otto told him to wear. He wore this corset steadily until about two or three weeks before he started to work for Mr. Fassold. After that he only wore it once in a while when he would arise in the morning with a feeling that his back was going to bother him. Claimant testified that he did no heavy lifting on his present job, only light lifting. Mr. Fassold's grandson does the heavy lifting for him. On one occasion claimant tried lifting a few sacks, but was unable to rest that night.

Dr. Stanley G. Legner was called as a witness by the employer and insurer. He testified that he had occasion to treat claimant on October 5, 1959. He stated that claimant was at the time complaining of low back pain and pain in both groins. The doctor further stated that claimant gave a history of having prostate trouble some five years prior; that Dr. Grayson took care of him at the time, and that his complaints then were about the same as those he had on October 5th, i. e., low back pain and pain in the groin. Dr. Legner examined claimant's prostate and found it normal. He also made a urinalysis and found a mild cystitis, which meant that claimant perhaps had a mild infection of the bladder. He did not think a virus would cause back pain, but prostate trouble could. He testified that from his examination he established to his own satisfaction that his low back pain was not due to prostate trouble.

Dr. Legner further testified he had no record or recollection of claimant giving him a history of any traumatic incident preceding his visit of October 5th. The doctor again saw him on October 8th. The doctor stated that on that visit the urinalysis was negative, but claimant still complained of back pain. The doctor did not explore the cause of this pain. He stated he had no note in his record of prescribing bed rest, but in such cases he recommends limited activity, which he was sure he did in claimant's case. The doctor took no X-rays at the time. The doctor had no recollection of setting a date for a return visit subsequent to October 8th.

Dr. Legner further testified that claimant was carried into his office by two men on November 5th, 1959. Claimant was unable to bend over. He complained of sudden pain in his back, which radiated down the left side of his back and down his left leg, stating that this occurred acutely while he was moving some feed bags. Dr. Legner further stated that the pain complained of on November 5th was different from the pain suffered in October, in that the pain in October was localized in the sacral area, while the pain in November went down the left leg to the foot. The doctor gave claimant a 'shot' and sent him to the hospital, where he treated him until November 15, 1959, at which time he was transferred to St. Francis Hospital in Cape Girardeau, and placed under the care of Dr. Thomas G. Otto. Dr. Legner performed a myelogram and took X-rays in connection therewith. These showed suspicious evidence of a herniated disc at the fourth and fifth lumbar level, and Dr. Legner so diagnosed the claimant's condition. The doctor testified that in his diagnosis he did not connect the complaints of October 5th with those of November 5th. Dr. Legner gave the following testimony:

'Q. Now when Mr. Welker was brought into your office in November did you then consider the question of any connection between this and the October episode for which he had been in?

'A. No, sir, because this was an acute onset and the pain was different from what he complained of in October. He complained only of pain in the sacral area or what we refer to as low back pain without any specific radiation in any area.

'Q. There was still low back pain on the second episode in November, was there not?

'A. When he came in on the 5th of November?

'Q. Yes, sir. A. He had an acute pain starting in his back but this pain was radiating to the left leg and left hip. * * *

'Q. Was it the same area of the back he complained of previously, same part of the back?

'A. It started in the same area but it was on one side. It was a left sided pain whereas before it was just a general pain across his back. It was not a severe pain but an aching pain across his back. In other words, it covered the whole low back area.'

Dr. Legner further testified that there was nothing in the history or the examination in October which indicated a disc involvement or ruptured disc. He stated:

'* * * on that occasion I didn't feel that there was any disc symptoms present at that...